People v. Rauschenberg

Error to the County Court of DuPage county; the Hon. WILLIAM
L. GUILD, Judge, presiding. Judgment affirmed.

SPIVEY, J.

Rehearing denied April 6, 1961.

In an information filed against them in the County Court of DuPage County it was charged that "Dolores Rauschenberg, Frank Kreigl and Louise Kreigl on July 18, 1959 did knowingly, wilfully and unlawfully obstruct, resist and oppose a duly authorized constable in serving or for having served legal process in that the said Dolores Rauschenberg, Frank Kreigl and Louise Kreigl did assault, strike, scratch and bruise one Constable Harold Bojens while serving or for having served a summons from the Justice of the Peace Court of Jack T. Parish on said Dolores Rauschenberg, etc., DuPage County, Illinois, on the date aforesaid, contrary to the Statute, etc." A trial before a jury resulted in guilty verdicts as to Dolores Rauschenberg and Frank Kreigl and Louise Kreigl was found not guilty.

The jury fixed a fine of $200.00 and imprisonment in the County Jail for twenty days for the defendant, Rauschenberg, and fixed a fine of $100.00 and imprisonment in the County Jail for ten days for the defendant, Frank Kreigl.

Judgment on the verdict as to Dolores Rauschenberg was entered on the 27th day of November, 1959, and judgment as to Frank Kreigl was entered on December 28, 1959. On February 15, 1960, the defendants were granted an additional forty-five days from that date in which to file their bill of exceptions. However, the bill of exceptions was not filed in the trial court until April 5, 1960, which was five days more than the time given them in which to file the bill of exceptions.

Rule 2 of this court provides in part as follows: "In all criminal cases in which writ of error is sought, the bill of exceptions or report of proceedings at the trial, if it is to be incorporated in the record on review, and other proceedings which the plaintiff in error desires to incorporate in the record on review, shall be submitted by the plaintiff in error to the trial judge or his successor for his certificate of correctness, and be filed duly certified, in the trial court within one hundred days after judgment was entered, or within any extension thereof granted within the one hundred days or any extensions thereof."

The bill of exceptions insofar as Frank Kreigl is concerned was filed ninety-nine days after judgment was entered against him and was timely filed. However, as to Dolores Rauschenberg, it was filed more than one hundred days after judgment and after the expiration of all extensions of time thereof. As to Rauschenberg, then, this cause is before this court solely upon the common law record. People v. Jensen, 24 Ill. App.2d 302, 164 N.E.2d 228; Lukus v. Lukus, 381 Ill. 429, 45 N.E.2d 869.

The evidence offered on behalf of the People showed that Harold Bojens, at the time of the occurrence was a duly authorized, elected and acting Constable of Bloomingdale Township, DuPage County, Illinois. On July 17, 1959, the Constable was given a summons to be served on Fred and/or Dorothy Rauschenberg. The summons originated in a Justice Court in a civil matter.

According to the people's evidence, an attempt was made to serve the summons on Friday evening, July 17th. The Constable testified that he went to Kreigl's home and asked for Fred or Dolores Rauschenberg. Frank Kreigl advised the Constable that Rauschenberg's were not living at that address and inquired as to the nature of the business, but the Constable declined to discuss the matter with Kreigl. The Constable testified that he identified himself as a constable, and states he was wearing his belt, holster and star. He asked for the address of Rauschenberg's but Kreigl refused to give him this information. The constable then learned Rauschenberg's address from the Justice of the Peace and went to their home later, on the 17th. When he arrived at Rauschenberg's, he stated that a woman he later learned was Dolores Rauschenberg and three children were outside the residence at 41N 616 Route 83. He inquired if the Rauschenbergs lived there and the woman told him they did. He then identified himself as a constable and asked to talk to Mr. or Mrs. Rauschenberg. The woman then stated she was the baby sitter and would give no information as to the location of the Rauschenbergs.

The constable then inquired of Mr. Rowe, a neighbor of Rauschenberg's and was advised that the woman in the Rauschenberg house was in fact Mrs. Rauschenberg. The constable returned to the Rauschenberg home, and again attempted to talk with Mrs. Rauschenberg but without success. Shortly, Mr. and Mrs. Kreigl, the mother and father of Mrs. Rauschenberg arrived and had a conversation with the constable and then went into Rauschenberg's house.

Later the Kreigls and Dolores Rauschenberg left the home and started to get in the Kreigl automobile. The constable states he stopped them and told them he had a summons to serve on Dolores Rauschenberg and placed the summons on the arm of Dolores Rauschenberg. Thereafter followed a melee in which Dolores Rauschenberg, Frank Kreigl and the constable joined in battle resulting in this criminal proceeding. It was stated that Frank Kreigl was the aggressor.

Defendants contend that on the 17th of July the constable called at the Kreigl home and asked for Frank Rauschenberg but refused to identify himself or disclose his purpose. Frank Kreigl testified that the constable "got smart" and threatened to call the police and then left. Dolores Rauschenberg testified that the constable knocked on her door and that her child answered the knock and inquired as to the constable's business. She stated the constable told the child "tell her to come to the door or I'll put her in jail for a year." This frightened Mrs. Rauschenberg, she stated, and she sent her son Terry to the neighbors to call for Frank Kreigl. Mrs. Rauschenberg contends that the constable never identified himself, or advised that he wanted to serve a summons.

When the Kreigls arrived they wanted to take Mrs. Rauschenberg away from the house and claim that they were assaulted by the constable as they were leaving.

Plaintiffs in error contend (1) that the process the constable claims to have been attempting to serve or had served was void and the defendants cannot be guilty of resisting arrest when the process is void; (2) that the information was in the disjunctive and defective; (3) that the information failed to allege that process served by the constable was issued out of a Justice of Peace Court for DuPage County and that the Justice was duly qualified, etc.; and ...

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